|CITY OF OMAHA, a Municipal Corporation,|||||CASE NO.388|
|v.|||||OPINION AND ORDER|
|OMAHA POLICE UNION LOCAL NO. 101,||||
For the Petitioner: Kent N. Whinnery
For the Respondent: M.H. Weinberg
Before: Judges Kratz, Gradwohl, Berkheimer.
The petition herein, filed by the city of Omaha (hereafter also called petitioner or city), requests an order of the Commission establishing the rates of pay and conditions of employment for all sworn police officers holding the rank of police officer, sergeant, lieutenant, and captain in the city of Omaha police division. Omaha Police Union, Local No. 101 (hereafter also called respondent or union) filed a cross petition which also requests a determination of the rates of pay and conditions of employment. Both parties originally requested this Commission to also determine the composition of the bargaining unit, but at the hearing it was agreed that this was no longer an issue (T5). An earlier hearing in this matter disposed of all other issues raised by the pleadings, except the determination of wages and conditions of employment, and this hearing was confined to that issue.
The controlling statute is Section 48-818, which says as follows:
The findings and order or orders may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same. In making such findings and order or orders, the Commission of Industrial Relations shall establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. In establishing the wage rates the Commission shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees. Any order or orders entered may be modified on the commission's own motion or on application by any of the parties affected, but only upon a showing of a change in the conditions from those prevailing at the time the original order was entered.
The procedure in the Commission of Industrial Relations must conform to the code of civil procedure applicable to the district courts of the state, except as modified by Commission Rule or by a specific statute pertaining to the Commission. Section 48-812. See Fraternal Order of Police, Lodge No. 8 v. County of Douglas , 4 CIR 185 (1980). The Commission is bound to follow the rules of evidence applicable to the trial of civil cases. Section 48-809. See Plattsmouth Police Department Collective Bargaining Committee v. City of Plattsmouth , 205 Neb. 567, 288 N.W. 2d 729 (1980). Decisions must be based solely upon evidence in the record or evidence of which a district court might take judicial notice. Section 48-817. General Drivers and Helpers Union v. City of West Point , 204 Neb. 238, 281 N.W. 2d 772 (1979).
Burden of Proof
In Lincoln Firefighters Association Local 644 v. City of Lincoln , 198 Neb. 174, at 178, the Nebraska Supreme Court said:
The city maintains the court should not have ordered a wage increase after rejecting the evidence presented by the Union. This contention is without merit. It is true the burden is on the moving party in a Section 48-818, R.R.S. 1943, case, to demonstrate that existing wages are not comparable to the prevalent wage rate, but all evidence contained in the record may be considered for this purpose. There is no merit to the city's contention that the city's evidence cannot be used. The burden of proof is satisfied by actual proof of the facts. of which proof is necessary, regardless of which party introduces the evidence. 31A C.J.S., Evidence, Section 104, p. 176.
Thus, the burden in this case is not necessarily on the petitioner, but is "on the moving party". The moving party is the party who is arguing that the present wages and conditions are not comparable to the prevalent wages and conditions and should, therefore, be changed. In other words, the party who is attempting to move the wage rate up, or down, or to change an existing condition of employment, is the "moving party". See Fraternal Order of Police, Lodge No. 8, v. County of Douglas , 4 CIR 185 (1980).
Where both parties request a change in the same direction, such as in this case, the burden will be on the party seeking the greatest change. For example, if the city asked an increase of $1,000, and the union requested an increase of $2,000, the burden would be on the union. If there was an attempt by the city to decrease the wage, it, of course, would have the burden on that issue.
While the city filed the case in this instance, and initially went forward with the evidence, it is the union which is requesting the greatest change in the wages and conditions. Therefore, the union has the burden of proof. That burden is satisfied by actual proof of the facts of which proof is necessary, regardless of which party introduced the evidence.
Under Section 48-818, R.R.S. 1943, in selecting cities in reasonably similar labor markets for the purpose of comparison in arriving at comparable and prevalent wage rates, the question is whether, as a matter of fact, the cities selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate. Fraternal Order of Police v. County of Adams , 205 Neb. 682, 685, 289 N.W. 2d 535, 537 (1980); Omaha Assn. of Fire-Fighters v. City of Omaha , 194 Neb. 436, 441, 231 N.W. 22 710, 713 (1975); Crete Educ. Assn. v. School Dist. of Crete , 193 Neb. 245, 255, 226 N.W. 2d 752, 758 (1975). Since a factual determination is to be made in each case, the use of a particular array in one case does not require that the same group of employments would be appropriate in a different case. Crete Educ. Assn. v. School Dist. of Crete , 193 Neb. 245, 255, 226 N.W. 2d 752, 758 (1975).
The petitioner's evidence consisted of comparisons with employees of six cities: Akron, Ohio; Cincinnati, Ohio; Rochester, New York; Sacramento, California; St. Paul, Minnesota; and Toledo, Ohio. The respondent's evidence consisted of comparisons with employees of those same six cities, plus the following five additional cities: Portland, Oregon; Wichita, Kansas; Minneapolis, Minnesota; Oakland, California; and Long Beach, California.
The evidence shows the six cities presented by both parties conform to the statutory criteria of Section 48-818, taking into account factors of "same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." In addition, respondent has presented evidence sufficient to establish that Portland, Oregon, and Wichita, Kansas, also meet the statutory criteria of Section 48-818. The duties, skills, and working conditions of the police officers, and the populations, crime rates, economic and other general characteristics, of these cities are comparable and thus conform with the requirements of Section 48-818 and the prior determinations of this Commission and the Nebraska Supreme Court. We find that this 8 city array is appropriately balanced, sufficiently similar, and has enough like characteristics and qualities to make an appropriate comparison.
Three of the cities proposed by the respondent--Long Beach, Minneapolis, and Oakland--have been excluded from the array utilized by the Commission for the decision in this matter. Long Beach was excluded because it is "basically a part of the Los Angeles metropolitan complex rather than a separate entity." See Omaha Police Union Local No. 1 v. City of Omaha , 3 CIR 356, 367-368 (1977). As was pointed out in American Federation of State, County, and Municipal Employees v. City of Lincoln , 3 CIR 481, 487 (1978), "The wages of suburban cities are generally similar to the wages of the principal city, since they are all a part of the same labor market." Using the Long Beach wage rates would, therefore, be inappropriate since they are more reflective of a much larger metropolitan area than Omaha.
In Omaha City Employees Local No. 251 v. City of Omaha , 3 CIR 430 (1978), the Commission, following the reasoning expressed in Omaha Police Union, Local No. 1 v. City of Omaha , 3 CIR 356 (1977), excluded the City of St. Paul, and accepted Minneapolis, since using both cities may be skewing the data by counting the same market twice. We reject Minneapolis and accept St. Paul for this particular array because the demographic factors of St. Paul more closely approximate Omaha than Minneapolis, and the manpower of the St. Paul force is more like Omaha than the Minneapolis force.
For much the same reason that Long Beach was eliminated, we exclude Oakland. Oakland is basically an extension of the San Francisco metropolitan area. Thus, Oakland's characteristics are more representative of the larger metropolitan area, with its wages and other conditions of employment reflective or Omaha's characteristics.
We find, therefore, that the comparisons to be made in the determination of this matter should be the following eight cities: Akron, Ohio; Cincinnati, Ohio; Rochester, New York; Sacramento, California; St. Paul, Minnesota; Toledo, Ohio; Wichita, Kansas; and Portland, Oregon.
In addition to presenting into evidence the minimum and maximum monthly salaries of the job classes involved in this dispute, respondent has also made separate adjustments to the reported salary figures based on intermediate ranks between the rank of police officer and sergeant. Respondent adjusted the wages of the police officer upward to reflect the higher degree of job knowledge and skill required of the police officer in
Omaha who is allegedly performing the same job duties as those officers in other cities in a higher, more specified rank. We decline to attempt to adjust the figures using the intermediate ranks as an extension of the police officers salaries. Section 48-818 does not require exactness when comparing job duties. Lincoln Police Union v. City of Lincoln , 5 CIR 134 (1981). The police officers in our selected array, who have intermediate ranks, perform the "same or similar work" using only the police officer classification.
The following tables set out the minimum and maximum monthly salaries of the job classes in dispute in the cities selected by the Commission for comparison purposes, and also show comparisons of the other conditions of employment presented to this Commission for determination.
There was considerable evidence and argument concerning the city pension program. Respondent requested a change (tables 22, 23, and 24) and the petitioner argued that it should remain as is. Respondent, therefore, has the burden of proof on this issue.
Respondent's expert witness, Fenton Isaacson, admits that respondent's evidence doesn't show that each of the compared to cities determined the "final salary . . . from whence you figure the pension benefits" on the same basis (T 387). The petitioner argues that in order for the respondent to properly show the prevalent pension conditions in the compared to cities, it must show that all of them have used the same compensation items in determining the salary figure used as a basis for determining the pension benefits. The question raised by the city is whether compensation items such as longevity pay, sick leave pay, uniform allowance, overtime pay, and holiday pay were used in determining this salary figure, and also, was the practice in this regard uniform in all of the compared to cities.
Isaacson says "I didn't attempt to check whether the various fringe salaries were or were not included in each of the ten cities" (T 389). He furthermore says:
And I think what you are asking me is that while in the percentage and years of service factor Omaha is down at 50% as compared to like the 65 or so percent for the other cities, that when you come to this salary factor the question is what's included in that compensation and that possibly if Omaha includes enough things other than basic, which other people don't, it can offset that 15% difference .... And obviously of course it could. (T 409)
The testimony indicates there may be some differences in the compared to cities as to whether or not overtime pay is included in this final salary for pension purposes figure, but there is no specific testimony which gives any indication as to whether or not the other items of compensation are included. Isaacson says the basis for the final salary for pension purposes figure is "total earnings" (T398), but he doesn't say what goes into total earnings.
Isaacson's answer to petitioner's claim that what compensation items are included in this salary figure could make a difference in Omaha's pension status (prevalent or not prevalent) among the compared to cities, is to say that this issue has never been raised before (T399), the compensation items discussed are minor (T399), and the effect of whether or not these items were included in the salary for pension purposes would be insignificant (T405 & 406).
From the testimony and evidence in this case, we can't determine whether or not the inclusion or exclusion of those compensation factors would be significant. While in one instance, Isaacson says it would be insignificant, in another he indicates it could make a "15% difference". He admits he has never been confronted with this issue, and he says, ". . . when you start asking me is it significant, I've got to say I don't know. . ." Thus, we cannot give weight to Isaacson's testimony regarding the significance of the inclusion or exclusion of these fringe figures in the compensation for pension purposes figure, not only because his comments are somewhat contradictory in this regard, but also because he has never before dealt with the issue.
We are furthermore limited with regard to pension determinations by the Nebraska Supreme Court's decision in Plattsmouth Police Department v. City of Plattsmouth , 205 Neb. 567, 288 N.W. 2d 729 (1980). In that case, the Supreme Court vacated a Commission order directing the city to amend its pension plan on the ground that the Commission has no general jurisdiction over contract disputes, and the pension plan is "in the nature of a longterm contract which extends beyond the 2-year period over which the Commission had jurisdiction in this case."
We decline, therefore, to make any change in the Omaha pension plan, or any adjustment therefor in the determination of "overall compensation" for the purposes of establishing wage and other working conditions pursuant to Section 48-818.
Miscellaneous conditions of employment
The respondent offered evidence with regard to a great variety of miscellaneous conditions of employment. On some of these, it did not request that the condition be altered to conform with the prevalent, but instead requested that the Commission make an upward adjustment in wages based on the fact those conditions were prevalent. On others, respondent's evidence indicates it is not actually asking for a change, and on still others, the condition requested is already provided by the city, but is not specified in the collective bargaining agreement. Many of these miscellaneous conditions involve an interpretation of contract clauses where the specific language can differ significantly.
The collective bargaining agreements from the compared to cities are not a part of the evidence, so we can make no comparison of the actual language of the contract conditions requested by respondent. For example, respondent requests a change in the city's practice with regard to "doctor's slip for sick leave". The testimony shows this slip is required in Omaha after you have taken 7 accumulated days of sick leave. Thus, when you do not report on the 8th accumulated day, because of illness, you must present a statement from your doctor. Respondent objects to the "cumulative type of balance", and requests this be changed to require a doctor's certificate only after an absence of 5 straight days. Union witness, Demke, testified that in the other cities "the general practice was that they would not request a doctor's certificate until after the employee was gone for five straight days". The exhibit on this item, however (Respondent's Exhibit #19, table 12), shows something different, and we cannot reconcile this difference because we don't have the contract clauses from the compared to cities, nor any more detailed testimony regarding the scope and specific application of these clauses in those cities. The same is true with regard to union leave time (table 20). We have limited testimony on this issue (pages 75-77 of the transcript) and according to respondent's exhibit (#18), this condition varies enormously in the compared to cities. Furthermore, the number of people eligible for this benefit in the compared to cities is apparently based on "past practice", and we have no explanation of what constitutes past practice. Without the contract clauses, or more detailed and specific testimony regarding the allegedly prevalent condition, we either can't determine that the condition is prevalent, or, if we can determine it is prevalent, we don't have enough specific information as to its content to order it into effect.
We cannot order a specific condition of employment unless there is evidence in some detail defining the prevalent condition. Section 48-818 does not authorize the Commission to enter an Order from a composite of generalized statements.
With regard to these miscellaneous conditions of employment, we therefore have several alternatives: (1) If, in order to determine whether the condition is actually the prevalent condition in the compared to cities, it is necessary for us to have either the actual contract language of the specific condition of employment or more detailed and specific testimony as to what the condition provides, and that contract language or other description of the condition is not in evidence, we will refuse to make a determination under Section 48-818 covering that condition of employment. (2) If in the compared to cities the exact content of a condition of employment is clear from the total evidence, we will either enter an order as to that condition of employment, or find that Omaha's condition in this regard is less or greater than the prevalent and adjust the "overall compensation" accordingly. (3) If in the compared to cities we cannot determine the exact content of a condition of employment, but we can clearly determine that it is a prevalent condition, we will adjust the "overall compensation" to account for the fact that Omaha is below or above the prevalent.
With this guideline. in mind, we find as follows:
We take no action with regard to the following conditions for the reason that we are unable to determine from the evidence the prevalent condition in the compared to cities:
Compensation for training (table 12), doctor's slip for
sick leave (table 12), report in prior to 8-hour shift (table
16), union representative at normal interrogation (table
19), record of proceeding (table 19), refusal of polygraph
as condition of work (table 19), procedure of hearing subject to grievance (table 19), union affirmative action on
strike (table 20), union notice of all disciplinary action
(table 20), union initiate grievances (table 20), longevity
pay (table 25-26), gun allowance/stress pay, reduction
of current vested pensions or future pensions by amount
of workmans compensation award.
Our Order will include the following conditions for the reason that the evidence shows clearly the content of this specific condition of employment and that it is the prevalent condition in the compared to cities: grandfather rights to residency requirement (table 10), vacation leave increments of 4 hours (table 12), annual paid holidays (table 13), court appearance pay (table 18), uniform and equipment replacement in line of duty, and glasses and watches lost or damaged in line of duty (table 15), district court included in court appearance pay (table 18*), maintenance of benefits (table 19), who pays the arbitrator, (table 20), dental insurance (table 21), and amount of life insurance coverage (table 21).
Taking into account the "overall compensation" standard of Section 48-818, we will adjust the Omaha wages upward based on our conclusions that the following Omaha conditions are lower than the prevalent conditions in the 8 city array: night differential (table 7), maximum accumulation of sick leave (table 11), initial issue of uniforms (table 14), uniform allowance (table 14), revolver furnished (table 14), leather items furnished (table 14), insurance for retirees (table 17), and reimbursement of union leave time (table 20). We deduct somewhat from this upward adjustment because Omaha is above the prevalent with regard to sick leave (table 11), funeral leave for direct relatives (table 12), and tuition reimbursement (table 6).
We will make no changes in the following conditions because the evidence shows that Omaha presently is comparable to the prevalent condition in the 8 city array: educational incentive (table 5), paid vacation (tables 8 & 9), residency requirement (table 10), funeral leave for inlaws (table 12), personal leave--floating day (table 13), number of 8-hour work days (table 13), overtime pay (table 13), call back pay for court appearance (table 18), grievance definition (table 20), employer payment of premium for group insurance (table 21), employer payment of premium for life insurance coverage (table 21), and furnishing of shoes (table 15).
Determination as to "overall compensation".
Section 48-818 states that "...In establishing wage rates the commission shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees." This rule of overall compensation does not require an identity of benefits, but only requires that the overall compensation be "comparable to the prevalent wage rates paid and conditions of employment for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions."
Applying the statutory requirements to the evidence in this case, we find that the wages for the 4 job classifications in this case should be increased. These wages are lower than those for other workers under the statutory test. Taking into consideration the overall compensation received by employees in the compared to cities, which includes the differences in conditions of employment heretofore discussed, we determine that wages for each classification should be increased as follows:
(1)for Police Officer, the minimum monthly salary level should be increased to $1,495.00 and the maximum monthly salary level should be increased to $1,785.00;
(2)for Police Sergeant, the minimum monthly salary level should be increased to $1,890.00 and the maximum monthly salary level should be increased to $2,100.00;
(3)for Police Lieutenant the minimum monthly salary level should be increased to $2,140.00 and the maximum monthly salary level should be increased to $2,380.00;
(4)for Police Captain the minimum monthly salary level should be increased to $2,555.00 and the maximum monthly salary level should be increased to $2,760.00.
These increases should be allocated to the intervening steps between the minimum and maximum monthly salary levels in the same proportionate relationships as the current steps.
We furthermore determine that the city should place into effect the following conditions of employment:
1. The residency requirement shall have no application to the police officers who were employed in the system prior to the enactment of the ordinance which established the residency requirement.
2.Vacation leave increments will be provided at a minimum of four hours.
3. All Police Officers shall be provided with 11 paid holidays per year.
4. The city will replace uniforms, equipment, glasses and watches lost or damaged in the line of duty.
5. All Police Officers shall be paid for appearance in any court during non-working hours on the basis of a minimum of four hours of straight time pay, and the 48 hour notice requirement in this regard shall be eliminated.
6. The city shall institute a policy of maintenancy of benefits, i.e., all conditions of employment shall be maintained at not less than the highest minimum standard in effect at this time.
7. In the event the parties make use of arbitrator under the provisions of the collective bargaining agreement, the parties shall share his/her expense equally.
8. The city shall provide 70% paid family dental insurance.
9. Life insurance coverage for Police Officers shall be increased to $8,000. This increase shall be placed into effect as of the date of this order.
This Order, except for the increase in the life insurance, shall be effective for the period from January 1, 1981, to December 31, 1981. The amount due for the contract year already elapsed shall be paid as soon as feasible following the entry of this Order.
All Judges assigned to the panel in this case join in the entry of this Opinion and Order.
Entered August 7, 1981
l Refers to page 5 of the transcript of testimony.
2 We have considered the fact that Wichita has no Sergeant's rank and employs eight intermediate ranks between Police Officer and Lieutenant, and find that it is nevertheless comparable.
3 Chief of police, Richard Anderson, testified as a witness for the union and said the St. Paul police force was "much more like Omaha" than the Minneapolis police force (T455).
4 These intermediate rank salaries are set forth in column two of Respondent's Exhibit #2.
5 Inasmuch as the union has the burden of proof, in those instances where there is a difference in the salary figures presented by the parties for the same city, and neither figure is more credible than the other, we have used the city's figures. Fraternal Order of Police v. County of Adams , 3 CIR 585, 590 (1978) affirmed 205 Neb. 682, 289 N.W. 2d 535 (1980).
6 0maha uses it; Portland does not (T403), and the evidence is not clear as to what they do in the other cities.
1O We need either the actual language of these contract conditions, or more detailed testimony with regard to what the conditions actually provide, before we can determine whether or not the condition is prevalent.
11 The union's evidence on this issue is inadequate. It is based on several telephone calls after adjournment the first day, with very limited foundation and explanation.
12 The evidence on this condition is somewhat confusing because of the differences between the union's and the city's exhibits. From the evidence we have, however, we cannot conclude that what the City of Omaha provides in this regard is less than the prevalent.
13 The union requests that we use this condition, plus night differential and educational incentive, as the basis for an upward adjustment in the wages. We will, however, treat these conditions separately and the evidence shows that gun allowance/stress pay is not a prevalent condition (T38).
14 A requirement that the employee live within the city is the prevalent condition in the 8 city array. We conclude, however, that this requirement shall not apply to those employees already in the system prior to the enactment of the ordinance, based on the fact that of the five cities using the residency requirement, four of them specify full "grandfather" rights.
15 Union witness, Demke, testified that it is already the city's practice to grant this type of leave in four-hour increments, but this condition is not specifically written into the agreement.
16 The prevalent appears to be 11 paid holidays per year, so we will order the city to add an additional paid holiday.
17 This is four court appearance during non working hours. It should be changed to a minimum of four hours at straight time pay, and the 48 hour notice requirement should be eliminated.
18 The evidence shows that the city already replaces these items when they are damaged in the line of duty (T67), though there is no language in the collective bargaining agreement in this regard.
19 The union's request on this issue is not clear. Its exhibit (No. 12) shows that the district court is included in court appearance pay in Omaha and in the compared to cities, but Demke testified that the Omaha Police officers "receive a court appearance pay for municipal court but.. don't receive it for District Court" (T61). Subsequent testimony indicates the officers do get paid for district court, but "it's not a premium" (T62). Our order in this regard (footnote 17) will include the district court.
20 Though we don't have the collective bargaining agreements for the compared to cities, this type of clause is standard, and Demke's description of it ("those benefits they currently receive will be maintained during the life of the contract" - T89-90) is sufficient to allow us to order the city to observe it.
21 The evidence clearly shows that in the compared to cities this expense is shared equally by the parties.
22 Because the average of the dental insurance provided in the compared to cities is 70% paid family dental insurance, we will order the city to provide that coverage herein.
23 Since the amount of the city's life insurance coverage is somewhat below the prevalent, we will require that it be increased to $8,000.
24 It seems clear from the evidence that Omaha is below the prevalent on this issue, but we can't order the condition into effect without either the contract clauses from the other cities or more detailed testimony with regard to what is included in this condition. Does it apply to all union functions, or is it limited? Does it apply to all union people, just the officers, just the business agent, etc.
25 The evidence on paid leave (or paid vacation) in the compared to cities shows that Omaha gives more paid leave for the first 20 years of service, and less thereafter. The differences here would seem to balance out rather equally, so we conclude that there should be no change in this condition.
26 There is a conflict between the petitioner's and respondent's exhibits for Akron, Ohio. This conflict, however, needn't be resolved, since it would not alter the determination of the prevalent condition.
27 We leave the floating day as the employee's birthday.